During a dinner for students that the dean of the University of California, Berkeley law school held in his house’s backyard earlier this month, a woman wearing a hijab and checkered Palestinian scarf suddenly stood up with a microphone and amplifier. What followed lasted only a couple of minutes, but has led to a fierce debate about the limits of free speech, drawn death threats for those involved, and created a “media firestorm”, as the dean, Erwin Chemerinsky, has put it.
Some short and chaotic viral videos illustrate part of what happened. One of them shows the woman, Malak Afaneh, as she gives a Ramadan greeting; she is accompanied by a small group of other student protesters. As Afaneh begins reading a speech about the Israel-Gaza war, Chemerinsky and his wife, the law professor Catherine Fisk, quickly cut her off.
“This is not your house,” Fisk says, putting her arm around Afaneh’s shoulder and trying to grab the microphone. “This is my house.”
“Whoa, whoa, whoa,” a protester says. “Stop touching her. Stop touching her.”
“Get her to leave my house,” Fisk says.
“You don’t have to get aggressive,” a protester says.
“We have attorneys,” Afaneh says. “We have attorneys.”
“Please leave our house,” Chemerinsky says. “You are guests in our house.”
“This is our first amendment right,” Afaneh insists. “The National Lawyers Guild has informed us … ”
The video cuts off. Afaneh and the other protesters were forced to leave without finishing their statement, but the fallout of the abrupt encounter has continued to reverberate.
Afaneh, who is Palestinian American, has said she was physically assaulted by Fisk and suggested that she was discriminated against for her identity “as a visibly Muslim, hijab-wearing, keffiyeh-repping, Arabic-speaking woman” and for her pro-Palestinian stance. Since the incident, she said, she has received messages on social media accusing her of being a terrorist. For their part, Chemerinsky and Fisk have been getting death threats, Chemerinsky said.
As the death toll of Israel’s offensive in Gaza nears an estimated 34,000 Palestinians killed, protests and disruptions at US colleges and universities have become commonplace, with the Berkeley episode only one in a series of recent heated confrontations related to the war.
On Thursday, New York police arrested more than 100 students encamped at Columbia University in a demonstration for a ceasefire and the school’s divestment from Israel. Those arrests came the day after the president of Columbia, Minouche Shafik, was grilled by members of Congress over allegations that the war has spurred antisemitic incidents at Columbia and on other campuses.
But Chemerinsky’s record as a scholar of constitutional law and defender of free speech, including pro-Palestinian speech, has prompted thorny questions about whether the targeting of his home was a fair or effective protest tactic.
Jameel Jaffer, the director of Columbia University’s Knight First Amendment Institute, said on Twitter that he found the Berkeley incident “very sad”, and that the “commandeering of the dinner was bound to backfire”. He argued that it was a mistake to target Chemerinsky. “There has to be a more constructive way of engaging with him,” he wrote.
Afaneh is unapologetic. She feels that the protest, despite being cut short, was successful: “Its intention was to hold the law school accountable, and to show that the community is watching.” She says she has filed an administrative complaint against Fisk and Chemerinsky for religious discrimination and is considering further legal action.
About a week before the protest at Chemerinsky’s house, Law Students for Justice in Palestine (LSJP), a Berkeley student group that Afaneh co-heads, declared that they would hold a protest at the dinner unless Berkeley’s law school divested money that the students said is used to fund Israeli arms. Chemerinsky, who holds the dinner at his home every year, declined to engage with the activists and has said he has no control over the university’s investments. (Disclosure: I have edited op-eds that Chemerinsky has written for the Guardian, most recently in 2021.)
Activists from LSJP circulated a flyer on campus that depicted Chemerinsky holding a blood-stained knife and fork, with the caption “No dinner with Zionist Chem while Gaza starves!” The flier charged the university with putting $2bn of student tuition money toward “supplying weapons and jets to the Israeli occupation”. The University of California’s investment office could not be reached for comment at time of writing.
“I found the image very disturbing,” Chemerinsky told me. “One of the worst antisemitic tropes is blood libel. And a number of Jewish students and Jewish staff came to me and said: ‘Can’t you take [the flyers] down?’ And I said no, that so long as they post them in accord with law school posting rules, they’re allowed to do that.”
The students later replaced the flyer with a version that did not show blood on Chemerinsky’s knife and fork but was otherwise the same. “If you look at the poster, it’s not objecting to anything that I’ve said or done,” Chemerinsky added. “It was hard for me to see this as objecting to anything other than that I’m Jewish.”
He says he doesn’t know whether the students who created the poster understood its connotations. “But let me put it to you this way: if it were a caricature of a black dean, with an explicitly racist trope, what would have been the reaction in the community? Would it have been any answer to say: ‘Oh, we didn’t know that was a racist trope’?”
Afaneh denies there was an antisemitic undertone. “We had put out that poster to show that the [University of California] has blood on its hands,” she told me, “and that Dean Chemerinsky, as a UC representative and the dean of our law school, is complicit. If he was a Muslim that supported genocide, I would have put blood on the poster. If this was my mother that supported genocide, I would have put blood on the poster. He’s trying to spin this as a personal attack [on] his Jewish identity.”
Chemerinsky has described himself as a Zionist. He also represented the family of Rachel Corrie, an American activist who was killed in 2003 while trying to block an Israeli bulldozer from razing a Palestinian village in Gaza, and has generally defended freedom of speech and of association, including for pro-Palestinian activists.
In 2022, Law Students for Justice in Palestine and other Berkeley student groups made national headlines when they adopted a bylaw that forbid supporters of Zionism from speaking at their events. Chemerinsky conceded that student groups had the right to refuse to give a platform to certain views.
But he condemned the rule for effectively excluding many Jews from speaking to the groups. He signed an open letter against the bylaw, which argued that “all students should be freely admitted to all student groups”.
The fine line that Chemerinsky tried to walk – defending a right while condemning how that right is exercised – came under increased strain after Hamas’s attack on Israel. A week after Hamas fighters killed about 1,200 people and took more than 250 hostage, his colleague Steven Davidoff Solomon published an explosive op-ed in the Wall Street Journal entitled Don’t Hire My Antisemitic Law Students.
Solomon’s op-ed argued that the anti-Zionist bylaw at Berkeley was symptomatic of a “broader attitude against Jews on university campuses that made [Hamas’s] massacre possible”, and urged legal employers not to hire graduating law students who had endorsed the anti-Zionist bylaw or similar statements.
In the eyes of Solomon’s critics, he was effectively using his free speech to argue for punishing others for how they used theirs. More than 200 Berkeley law school alumni signed an open letter addressed to Chemerinsky, condemning Solomon’s op-ed.
Chemerinsky’s response disappointed them and others upset about the op-ed: he defended Solomon’s right to his opinion, then went on to publish his own op-ed, titled Nothing Has Prepared Me for the Antisemitism I See on College Campuses Now. The piece argued that anti-Zionism is often tinged with antisemitic or eliminationist rhetoric, and expressed disappointment that some critics of Israel had seemed to celebrate or downplay the violence of Hamas’s attack.
“Of course, criticism of the Israeli government is not antisemitism, any more than criticizing the policies of the United States government is anti-American,” he added. “I strongly oppose the policies of the Netanyahu government, favor full rights for Palestinians, and believe that there must be a two-state solution.”
Yet that caveat did not satisfy pro-Palestinian activists at Berkeley, particularly since many felt and feel that Chemerinsky and the administration had not done enough to protect them from harassment by Zionist groups.
Nor has Chemerinsky been insulated from criticism from the right. Following the viral controversy at his home, the conservative political magazine City Journal cast Chemerinsky as a naive liberal who had indulged his students’ radicalism and been repaid poorly.
“Dean Erwin Chemerinsky was shocked to discover this week that Berkeley Law is a bastion of progressive illiberalism,” one column read. “Among sane, rational people, Chemerinsky is widely admired. He doesn’t deserve this, except in the sense that he should have known better: this is, after all, what happens when revolutions eat their own.”
When I spoke to Camilo Pérez-Bustillo, the executive director of the National Lawyers Guild, Bay Area chapter, he declined to say whether the leftwing legal organization had given Afaneh legal advice – citing client confidentiality – but defended her actions. I asked Pérez-Bustillo why protesters would target Chemerinsky.
“He is a very influential figure within UC Berkeley,” Pérez-Bustillo argued, “someone that the leadership at Berkeley listens to, or should, and he also has special responsibilities as the dean of one of the leading law schools in the country and as someone who in his career has normally been associated with denunciation of these kinds of human rights violations.” With Gaza, however, “he’s been silent, now, as to the issue of genocide, as to the need for a ceasefire, as to the human rights abuses that continue to be rampant”.
Yet the idea that the first amendment protected Afaneh’s right to interrupt a school-sponsored event, as she suggested, is almost certainly untrue, according to most legal experts. Alex Morey, an attorney at the Foundation for Individual Rights and Expression (Fire), expressed surprise that a law student would think that she had a legal right to disrupt an event, even if it was sponsored by a public university, or that the NLG or any organization might advise her as much.
“We have reached a low-water mark,” Morey told me. “This is a Berkeley law student who seems woefully unaware of what her first amendment rights and responsibilities are. We’d like to see universities stepping into their educational role and helping guide these students in their first amendment education.”
Chemerinsky had expected that there could be protesters, he told me, but thought that they would picket outside his house.
Jaffer, who hosts a podcast exploring the free speech fallout in the US from the Israel-Gaza war, feels that pro-Palestinian speech has generally faced an unfair playing field.
“There’s been a wave of censorship and suppression since October 7,” he told me, adding that much of it has been designed to suppress pro-Palestinian speech. “All these questions would be important even if the United States had no connection to this war, but censorship of speech relating to the war in Israel and Gaza is censorship of speech relating to a war in which the US is deeply implicated.”
Jaffer wishes Chemerinsky had reacted differently to the protest.
“I’m not unsympathetic,” he said, “because I do understand why he might have responded differently in his own home than he would have on the law school campus. At the end of the day, though, I think it would have been better if he had allowed the student to have her say and then continued with the dinner. I’m not making a first amendment argument here; I’m making an argument about free speech culture. But I think that would have been a better result.”
Chemerinsky pushed back on that idea. “She did speak for a couple minutes,” he told me. “No, normatively, it’s not desirable to say that someone can disrupt a dinner in my backyard. You don’t have the right to do that. You also don’t have the right to come and deliver a message that was completely inappropriate to the occasion. And, again, put this in context. This person is the [co-head] of an organization that just posted a blatantly antisemitic flier about me.”
I asked Chemerinsky if he wished things had gone differently that evening.
“Oh, God,” he said, under his breath, then struggled for a moment to find his words. “What happened happened.”